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Inadmissible evidence leads to dismissed indictment in sex abuse case

A Juneau Superior Court judge this week dismissed an indictment against a man accused of child sex abuse, two weeks before the case was slated to go to trial.

In a ruling issued Thursday, Judge Philip Pallenberg agreed to drop the document that charged Joshua David Burger, 37, with 100 counts of first-degree sexual abuse of a minor. The ruling was made available to the Empire on Friday morning.

Pallenberg found that a grand jury considered inadmissible evidence and hearsay before handing up the indictment. An indictment is a formal accusation of illegal activity.

Attorneys are scheduled to meet later this month to discuss how the case will proceed. District Attorney David Brower told the judge he plans on convening another grand jury in hopes of re-charging Burger within 20 days.

Burger’s attorney Julie Willoughby moved in October to suppress evidence and dismiss the indictment. She had argued, in part, police illegally recorded conversations between Burger and another person in which Burger gave an admission of guilt.

Pallenberg agreed late last month the recordings should be suppressed.

After more briefs were submitted, Pallenberg handed down his decision regarding the indictment. He concluded the admission of evidence of the recorded conversations, together with other improper evidence presented to the grand jury, required dismissal of the indictment.

There would have been enough remaining evidence to support the indictment, absent the illegal recordings, the judge pointed out. But the structure of the 100 counts themselves was problematic.

The counts were based on a mathematical formula, not a recollection of an instance of abuse. It distinguishes the 100 counts only by date ranging from November 2003 to December 2007.

Support for the number of counts was only found in the recorded conversation and the police officer’s description of the recording, he said.

“Absent the (inadmissible) evidence, the evidence as to the number of counts — as distinguished from the fact of sexual abuse itself — was weak,” Pallenberg wrote.

Pallenberg said if the indictment was structured so it charged representative counts, or broad time spans during which sexual abuse is alleged to have occurred, that might have been a different matter.

In his decision, he cited a 1992 Alaska Court of Appeals case, Stern v. State, that states, even if the remaining evidence would still support an indictment, the court must still dismiss it if “the probative force of that admissible evidence was so weak and the unfair prejudice engendered by the improper evidence so strong that it appears likely that the improper evidence was the decisive factor in the grand jury’s decision to indict.”

In this case, Pallenberg wrote, “The most powerful evidence against the defendant before this grand jury was (the police officer’s) testimony that Mr. Burger admitted to 100 or more incidents of sexual abuse in a recorded conversation. Given these facts, it is likely that Mr. Burger’s recorded admission was a decisive factor in the grand jury’s decision to indict on 100 counts.”

Burger has been out on $500,000 cash bail since late January in the custody of his mother. Pallenberg ordered Burger’s conditions of release remain the same.